WILLS AND TRUSTS

There are many ways you can plan for the future, such as making a will, inheritance tax planning or creating a trust.

A Will is a legal document that allows you to decide how your estate is handled after your death. It allows you to clearly set out your wishes, appoint a trusted person(s) to be Executor and with adequate planning, can also be tax-efficient.

Making a Will is one of the most important things you will do.

If you die without a Will, the law dictates what happens to your estate in accordance with the set rules of Intestacy.

When making a Will there are many things you should consider:

Who will be your Executors?
Who will benefit from your estate?
Do you want to leave any money gifts?
Who will look after your children?
How can you protect your assets?
Who will take over your business?

You may find that a trust is beneficial to your estate. Take a look at our frequently asked questions for more details on choosing executors, trusts and more.

Types of Wills and Will Trusts

Updating your Will?

Life is constantly changing — you may get married, go through a divorce, have children, or buy and sell property. That’s why we recommend reviewing your will at least every five years, or whenever a significant life event occurs.

Having an up-to-date will gives you peace of mind, knowing your wishes are clear and legally protected.

Free Will Review Service

Whether we wrote your will or not, our solicitors are happy to review it at no cost. We’ll advise you if any updates are needed or if a new will would be more suitable. Book your free will review with one of our experienced solicitors today.

FAQs

Do I need a Solicitor to make a Will?

You do not need a Solicitor to make a Will but it is advisable. The team at Gifford Cairns are experienced in giving you advice on your personal circumstances and advising on what clauses you would benefit from including in your Will.

We ensure that your Will meets all legal requirements and provides you with peace of mind that your Will is drafted correctly.

Who should I appoint as Executor(s)?

Choosing the right Executors for your Will is essential, as they will be responsible for managing and distributing your estate according to your wishes. Here are some key considerations for selecting your executors:

Trustworthy
- Choose someone you trust completely to act in your best interests and follow your instructions carefully.
Family Members or Close Friends
- Often, people appoint a spouse, adult children, or close friends. However, consider whether family dynamics could complicate the process.
Financial or Legal Knowledge
- Executors don’t need to be experts, but some familiarity with finances or legal processes can be beneficial. Alternatively, they should be willing to seek professional advice when needed.
Availability and Willingness
- Choose someone who is likely to have the time and energy to fulfill their duties, as executing a Will can take months or even years. Confirm that they are willing to take on the role.
Consider a Professional Executor
- If your estate is complex or you want impartiality, consider appointing a professional Executor.
Appoint Multiple Executors
- Appointing more than one Executor can provide support and accountability.

Do I need to make a new Will if I get married?

Yes, getting married generally automatically revokes any Wills prior to marriage.

Do I need to make a new Will if I get divorced?

Yes, if you get divorced, you should consider making a new Will. While a divorce does not automatically invalidate a Will, it can affect the distribution of your estate.

Do I need to make a new Will if I am separated but not divorced?

You should consider updating your Will if you are separated.

Separation does not automatically revoke a Will, but it can complicate matters regarding your estate.

If you die while still legally married, your spouse may still have rights to your estate and could make a claim, depending on the terms of your existing Will.

What can I do to protect my children?

If disaster strikes and both parents are lost at the same time, a well-drafted Guardianship Will becomes paramount.

The future care of your children is a decision that should not be left to chance; if both parents die intestate, social services may take over.

A guardianship clause should be clearly documented in your Will.

What can I do to protect my property?

A Property Protection Trust is written into your Will. They are designed to protect your share of your home as an estate planning tool to help you protect your loved ones from the following situations that may arise:

Depending on the original purchase contract be it Joint Tenants or Tenants in Common, if a couple are cohabiting and one partner dies without a Will, you may find that your partner’s family own half the house in accordance with Intestacy Rules.
In the event that the surviving spouse requires long term care it is highly likely that the estate value will be consumed by residential care fees – often in excess of £50,000 per year, per person. To protect your share of the property against such possibility, you will require a Property Protection Trust.
If you are separated, divorced or remarried, you may wish to make a Will with your cohabitant or new partner. The Property Protection Trust is designed to protect the deceased’s share of the home, whilst giving their partner a lifetime interest in the property. This enables the surviving partner to remain in their home, whilst ensuring their children are not at risk of sideways disinheritance.

Single Will

A single Will is created by one person, outlining how their estate should be handled after their death.

A single Will can also name guardians for minor children if applicable.

These can be appropriate if you are single, if you are married but have children from a previous relationship or if you are divorced.

Mirror Wills

A Mirror Will is typically made by two people (often spouses or partners), that have the same wishes. They are two documents but the content mirrors the other.

When one spouse dies the estate is passed to the surviving spouse. When they both die the estate is then distributed in accordance with the Will.

If you have children from a previous relationship, a mirror Will can sometimes be problematic as the surviving spouse can very easily change their Will after the death of their spouse and disinherit their spouses children.

Property Protection Will Trust

A Property Protection Trust Will (also known as a Life Interest Trust) is a type of will that includes a trust designed to protect a person’s property, particularly in the event of their death and the possibility of their surviving spouse or partner remarrying or going into care. It’s commonly used in the UK to ensure that the deceased’s share of the property is protected for their children or other beneficiaries, rather than being passed to the surviving spouse or partner.

Here’s how it generally works:

Property Protection: Upon the death of one partner, the deceased’s share of the property (often the family home) is placed into a trust, which is managed according to the terms of the will.
Surviving Spouse’s Use: The surviving spouse or partner is often allowed to continue living in the home or benefiting from the assets during their lifetime.
Beneficiaries: After the surviving spouse or partner passes away, the property or assets held in the trust will go to the children or other beneficiaries named in the will.

This type of will is often used when there are concerns about how the surviving spouse might manage the estate or if there are children from previous marriages, and the individual wants to ensure that the children inherit the property after the surviving spouse has passed away. It can also protect the deceaseds assets from being used to pay for care fees if the surviving spouse requires care in later years.

It’s a good way to ensure that a person’s property goes to the intended beneficiaries, even if the surviving spouse remarries or makes different financial decisions later on.

Discretionary Will Trust

A Discretionary Will Trust is a type of trust set up in a person’s will, which only comes into effect after they pass away. It allows the trustees to decide how when and to whom he money or assets are distributed among the chosen beneficiaries. An Expression of wishes is created to supplement the Will and provide guidance to the trustees on how assets should be dealt with.

Primary Benefits:

Flexibility: The trustees have full discretion on how to distribute the assets. This means no beneficiary has an automatic right to the money—it’s up to the trustees to decide.
Protection: It can protect assets from being wasted, misused, or lost due to issues like divorce, bankruptcy, or poor financial decisions by the beneficiaries.
Tax Benefits: It can help mitigate inheritance tax.
Future-Proofing: Since life is unpredictable, this type of trust allows the trustees to adapt decisions based on the circumstances of the beneficiaries at the time.

Vulnerable Persons Trust

A Vulnerable Person’s Trust Will is a type of will that creates a special trust for a vulnerable person when the person who made the will passes away. It ensures that the money or assets left behind are managed responsibly and used for the vulnerable person’s benefit while protecting their eligibility for means-tested benefits and shielding the assets from being misused.

To qualify for special tax benefits, the main beneficiary must be:

Disabled (meeting the legal definition under the Mental Capacity Act or receiving certain disability benefits, such as Personal Independence Payment [PIP] or Attendance Allowance).
A minor who has lost a parent (in some cases).